Where the defence is insanity, until the defendant furnishes evidence thereon suffi cient to raise a reasonable doubt, the prose cution may rest on the legal presumption that men are sane ; State v. Wetter, 11 Ida ho 433, 83 Pac. 341; and the mere fact of the commission of the crime is not sufficient to overcame this presumption ; Davis v. State, 44 Fla. 32, 32 South. 822.
The rule that a person adjudged insane continues so until the contrary is shown, ap plies only to insanity of a nature liable to be permanent ; Hempton v. State, 111 Wis. 127, 86 N. W. 596.
As to the rule on the subject, applied by the class of cases last referred to, see BURDEN OF PROOF. The cases of the former class, which put the burden on the defendant, as has already been suggested, in very many instances hold that a preponderance of proof only is required; and in some states the la ter cases show a virtual abandonment of the rule formerly adhered to by them. As for example in Massachusetts as will appear by the review of cases in that state in Davis v. U. S., 160 U. S. 481, 483, 16 Sup. Ct. 353, 40 L. Ed. 499. It results that it is not prac ticable to state what might be designated as a prevailing American rule. The subject is very fully discussed by Mr. Justice Har Ian in the case last cited. The cases holding different views of the subject will be found collected in the opinion and argument in that case and also in 14 Am. L. Reg. N. S. 25 ; 16 id. 449 ; Cl. Cr. L. 58; Mann, Med. Jur. of Insan. ch. iii.; Witth. & Beck. 508. And see memorandum on plea of insanity, State v..Baber, 11 Mo. App. 586.
A statute imposing upon the accused the burden of proving the defence of insanity is constitutional; McGhee v. State (Ala.), 59 South. 573.
In England, under 46 & 47 Viet. c. 38, re lating to the trial of lunatics, the jury re turns a verdict that the prisoner is "guilty, but insane at the time," whereupon the court records the verdict and orders the prisoner to be imprisoned during the pleasure of the Crown. Under 39 & 40 Geo. III. c. 94, the verdict was "not guilty, on the ground of insanity." In some states in this country, where the verdict is an acquittal by reason of insanity, the fact must be so returned by the jury, and in such case the court are required to the confinement of the prisoner in an insane asylum.
A statute is not unconstitutional which provides that one acquitted of murder on the ground of insanity may be committed to the state lunatic asylum till he becomes sane. The fact of sanity is not established by the fact that he is placed on trial, if, under the statute, an insane person may be tried if he is competent to understand the proceeding and make his defense. His 'right to habeas corpus, after committal, to establish his sanity, satisfies, his constitutional right to a hearing. The state may summarily deprive him of his liberty, under the police power, though no appeal is allowed from the order of acquittal. These questions were decided in People v. Chanler, 133 App. Div. 159, 117 N. Y. Supp. 322, id., 196 N. Y. 525, 89 N. E. 1109, 25 L. R. A. (N. S.) 946. See also Peo ple v. Baker, 59 Misc. 359, 110 N. Y. Supp. 848. In subsequent habeas corpus proceed ings the burden is on the petitioner to prove recovery of reason; People v. Lamb (the Thaw case) 118 N. Y. Supp. 389; so also in State v. Snell, 46 Wash. 327, 89 Pac. 931, 9 L. R. A. (N. S.) 1191; and he is not denied the protection of the law in such case; Peti tion of Dowdell, 169 Mass. 387, 47 N. E. 1033, 61 Am. St. Rep. 290; Petition of Le Donne, 173 Mass. 550, 54 N. E. 244. A com mittal of such person until the further or der of the court is not void for uncertainty ; and is no deprivation of due process of law ; In re Brown, 39 Wash. 160, 81 Pac. 552, 109 Am. St. Rep. 868, 4 Ann. Cas. 488, 1 L. R. A. (N. S.) 540, where there is a full note on the confinement of one acquitted of crime by reason of insanity.
The insanity of one acquitted of murder on that ground is presumed to continue un supra; and the court may thereupon com mit him to an asylum until he is proved sane; People v. Baker, supra; and so a court may stay an execution on the ground of in sanity until a prisoner recovers ; Ex parte State, em rel. Atty. Gen., 150 Ala. 489, 43 South. 490, 10 L. R. A. (N. S.) 1129, 124 Am. St. Rep. 79.